Citation Nr: 9931517
Decision Date: 11/05/99 Archive Date: 11/17/99
DOCKET NO. 94-19 466 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUES
1. Entitlement to service connection for arthritis of the
wrists.
2. Entitlement to a rating in excess of 10 percent for a
left shoulder disability.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Robert E. P. Jones, Counsel
INTRODUCTION
The veteran served on active duty from June 1970 to May 1992.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Indianapolis,
Indiana.
The veteran's claims were remanded by the Board for further
development in November 1996.
The RO granted the veteran's claims for service connection
for tinnitus, oral hyperkeratosis and for arthritis of the
left shoulder by rating action in February 1999.
Consequently, these issues are no longer before the Board.
In October 1998 the veteran raised the issue of service
connection for fibromyalgia of the wrists. This claim is
referred to the RO for appropriate action.
REMAND
Although the veteran submitted a timely Substantive Appeal in
September 1993 with respect to the RO's denial of service
connection for arthritis of the wrists, in June 1999 he
submitted a written statement indicating that he desired to
withdraw his appeal with respect to this issue. In July
1999, he submitted another statement indicating that he
desired to keep his appeal open until after a July 1999 VA
medical appointment pertaining to his wrists so that he would
be better able to make an informed decision concerning
whether to withdraw his appeal.
Although no later correspondence addressing this issue has
been received from the veteran, the written argument
submitted by his representative in September and October 1999
addresses this issue.
Based upon the above circumstances, the Board is considering
whether the veteran's appeal with respect to this issue
should be dismissed. In this regard, the Board notes that an
appeal consists of a timely filed Notice of Disagreement in
writing and, after a Statement of the Case has been
furnished, a timely filed Substantive Appeal. A Substantive
Appeal must be filed within 60 days from the date that the
agency of original jurisdiction mails the Statement of the
Case to the appellant, or within the remainder of the 1-year
period from the date of mailing of the notification of the
determination being appealed, whichever period ends later. 38
U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.302(b)
(1999).
An appellant may withdraw a Substantive Appeal in writing at
any time before the Board promulgates a decision. 38 C.F.R.
§ 20.204 (1999).
The United States Court of Appeals for Veterans Claims
(Court), in Marsh v. West, 11 Vet. App. 468, 471 (1998), held
that the Board erroneously failed to address whether its sua
sponte consideration of the question of the timeliness of a
Notice of Disagreement, without first according the veteran
an opportunity to submit argument or evidence on that
question, was prejudicial to the veteran. Under the
circumstances, the Board concludes that the veteran should be
afforded an opportunity to clarify whether he continues to
desire appellate review with respect to this issue and to
submit argument and evidence relevant to the question of
whether there is a timely Substantive Appeal with respect to
this issue.
The veteran also seeks a rating in excess of 10 percent for a
left shoulder disability. The veteran was granted service
connection and a noncompensable rating for left shoulder
rotator cuff tendinitis by rating action in November 1992.
Service connection was effective from June 1992. The RO
later increased the veteran's left shoulder disability rating
to 10 percent, also effective from June 1992. By rating
action in February 1999 the RO granted service connection for
left shoulder arthritis, determined that the left shoulder
arthritis was part of the veteran's overall left shoulder
disability, and continued the veteran's 10 percent rating for
the left shoulder disability.
The veteran's left shoulder was examined by a VA physician in
December 1997. The examination revealed the veteran to have
some limitation of motion of the left shoulder, good strength
of the left shoulder, and little pain of the left shoulder.
The veteran was subsequently examined by Steven H. Neucks,
M.D., a private rheumatologist, in October 1998. The report
from Dr. Neucks indicates that the veteran was found to have
an extreme reduction in the range of motion of the his left
arm and substantial pain on motion. Since this report
suggests that the service-connected disability has increased
in severity since the most recent VA examination, the Board
is of the opinion that the veteran should be provided another
VA examination.
In light of these circumstances, the case is REMANDED to the
RO for the following actions:
1. The RO should send the veteran a
letter requesting him to clarify whether
he continues to desire appellate review
with respect to the issue of entitlement
to service connection for arthritis of
the wrists. He should also be informed
that he will be afforded a period of 60
days in which to submit evidence or
argument relevant to the question of
whether a timely Substantive Appeal
exists with respect to this issue.
2. The RO should request the veteran to
identify specific names, addresses, and
approximate dates of treatment for all
health care providers, private and VA,
who may possess any additional records
pertinent to his claim for a rating in
excess of 10 percent for left shoulder
disability. When the requested
information and any necessary
authorization have been received, the RO
should attempt to obtain copies of all
pertinent records which have not already
been obtained.
3. Then, the RO should arrange for a VA
orthopedic examination of the veteran by
a physician with appropriate expertise to
determine the nature and extent of the
service-connected left shoulder
disability. All indicated tests and
studies, including X-rays and range of
motion studies in degrees, should be
performed. The physician should be
requested to identify any objective
evidence of pain and all functional loss
due to pain. The examiner should
specifically indicate the excursions of
left shoulder range of motion performed
without pain and the left shoulder range
of motion accompanied by pain. Tests of
joint motion against varying resistance
should be performed. The extent of any
incoordination, weakened movement and
excess fatigability on use should be
described. The examiner should also
express an opinion concerning whether
there would be additional limits on
functional ability of the left shoulder
on repeated use or during flare-ups, and,
if feasible, express this in terms of
additional degrees of limitation of
motion on repeated use or during flare-
ups. If this is not feasible, the
physician should so state. The physician
should also provide an opinion concerning
the impact of the service-connected left
shoulder disability on the veteran's
ability to work. The rationale for all
opinions expressed should be explained.
The claims files must be made available
to the examiner for proper review of the
medical history. The examination report
is to reflect whether such a review of
the claims files was made.
4. After the above actions have been
accomplished, the RO should undertake any
other indicated development and
readjudicate the veteran's claim for an
evaluation in excess of 10 percent for a
left shoulder disability, to include
consideration of DeLuca v. Brown, 8 Vet.
App. 202 (1995), and whether the case
should be forwarded to the Director of
the Compensation and Pension Service for
extra-schedular consideration. If the
benefit sought on appeal is not granted
to the veteran's satisfaction, he and his
representative should be furnished a
supplemental statement of the case and be
given an appropriate opportunity to
respond thereto.
Thereafter, the case should be returned to the Board, if
otherwise in order. By this remand, the Board intimates no
opinion as to any ultimate outcome warranted. The veteran
need take no action until he is otherwise notified by the RO.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded to the
regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
SHANE A. DURKIN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).